"The blog is also now unending: you can scroll down indefinitely if you so wish..."

A nice feature at Andrew Sullivan's newly independent blog. This means that the blog is set to have a  number of posts on the page when you click there, but if you want more, you don't have to click to an "older posts" page (as you do here), it automatically provides new posts as you scroll. This gives a vivid depiction of what a blog really is: a pile of posts one on top of the other. For example, my blog is a stack of 32,381 posts.

Sullivan has also moved his archive, which goes back to January 2001: "I have given a sharp dagger for anyone who wants to make me look foolish – so have at it." I don't think the archive makes him look foolish. I read him all the time back then, when he called himself conservative and tried to define conservatism in new ways. Or is the appearance of foolishness not in what those old opinions were, but in the later deviations? Would you read the sort of person who would go 12 years without contradicting himself?

The Dictionary of Received Ideas — my imagined modern American version of it — has this under "contradiction":

Do I contradict myself?
Very well then I contradict myself,
(I am large, I contain multitudes.)

That's the reflexive quotation but you can keep scrolling in that poem, Walt Whitman's tall stack of lines:

I concentrate toward them that are nigh, I wait on the door-slab.

Who has done his day's work? who will soonest be through
with his supper?
Who wishes to walk with me?

Will you speak before I am gone? will you prove already too
late?

I wait on the door-slab....

"There's no satisfaction to any Madoff loser that the son committed suicide."

"It's just tragedy on tragedy."

ADDED: All the newspapers have to say that Mark Madoff hanged himself with a dog leash. It's like "all the papers had to say was that Marilyn was found in the nude."

When does a single a death detail become irresistibly mentionable?

If only Flaubert were still here, adding entries to his "Dictionary of Received Ideas." At "Mark Madoff," we'd have "hanged himself with a dog leash."

I see Flaubert has an entry for "suicide": "Proof of cowardice."

Hamdan and the arcana of jurisdiction stripping.

Linda Greenhouse writes about the Hamdan case, to be argued in the Supreme Court Tuesday:

In the face of a measure that Congress passed and President Bush signed into law in late December to strip the federal courts of jurisdiction over cases brought by detainees at the United States naval base at Guantánamo Bay, Cuba, where Mr. Hamdan has been held since 2002, the court must decide whether it retains the right to proceed with this case at all.

For a court that has been highly protective of its own prerogatives, but at the same time notably attentive to the often arcane limits on federal court jurisdiction, the question is one of great delicacy, infused with historical resonance.

In my modern "Dictionary of Received Ideas," the entry for "Federal Jurisdiction" is: call it arcane. Being arcane, it's can be a good way to dispose of pesky problems. If you want to do a little sleight of hand, jurisdiction is a good move. We Federal Jurisdiction lawprofs make it our business to detect the fakery. But it's not all fakery, and the Constitution gives Congress some powers to check the courts, including the power to cut back their jurisdiction. The questions here are whether this statute cuts even pending cases, like Hamdan's, and whether that cut back goes beyond the scope of the power.

If there is jurisdiction, then the Hamdan case will deal with the validity of using military tribunals for the Guantanamo detainees.

More on Hamdan after the oral argument.

ADDED: SCOTUSblog has a good preview, including details about a possible 4-4 split vote and what it would mean. (John Roberts has recused himself, because he participated in the case at the Court of Appeals level. There's also a controversy about whether Antonin Scalia should recuse himself, given some remarks he made about the issue recently.)

MORE: Captain Ed is pretty hard on Scalia. You know, what bothers me the most about Scalia's statement is: "I had a son on that battlefield and they were shooting at my son, and I'm not about to give this man who was captured in a war a full jury trial." Much as I respect the son's service and the father's pride in it, the interests or activities of your friends and family should have absolutely no effect on how you decide a case. Are we to think that if the enemy were only shooting at someone else's sons, he'd take a different view of the issue?

CORRECTION: I've corrected the original text to show that the argument is on Tuesday, not Monday.

"Scalito."

I'm seeing news reports that President Bush will nominate Samuel Alito for the Supreme Court. Bush needs to pick a solid nominee and put the Miers debacle behind him. Presumably, he's determined that Alito is such a person. I would give a favorable presumption to Alito, but I will need to watch the nomination and see what comes out about him.

I welcome hearing something more substantial about the man than that people call him "Scalito" to signify his similarity to Scalia and because his last name is similar enough to Scalia that people just can't hear "Alito" without wanting to say "Scalito."

Alito: refer to him as Scalito.

That is an entry that belongs in a modern "Dictionary of Received Ideas." A side benefit of his nomination would be that people might -- eventually -- get over that mental tic.

What we're most likely to be talking about reflexively -- as we always must with a Supreme Court nomination -- is abortion, and we have one very hot fact about Alito:

In the early 1990s, Alito was the lone dissenter in Planned Parenthood v. Casey, a case in which the 3rd Circuit struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses.

"The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems - such as economic constraints, future plans or the husbands' previously expressed opposition - that may be obviated by discussion prior to the abortion," Alito wrote.

The case ended up at the Supreme Court where the justices, in a 6-3 decision struck down the spousal notification provision of the law. The late Chief Justice William H. Rehnquist cited Alito's reasoning in his own dissent.

What are we to think of his respect for the role of the legislature that claims to know better than an individual woman how well or badly things will go if her husband learns that she plans to have an abortion?

UPDATE: Here's the CNN report, which includes the line:

Legal experts consider the 55-year-old Alito so ideologically similar to Justice Antonin Scalia that he has earned the nickname "Scalito."

Oh, yes, legal experts. And you know, of course, they say it because they really have made a close study of the work of the two men and discerned a precise ideological similarity. Because legal experts wouldn't just reflexively mouth a meme.

UPDATE: Welcome Instapundit readers, and please come over to this more recent post for my discussion of why Alito is a stronger nominee than John Roberts.

Day 2 of the Roberts hearings.

I'm getting a late start, but I will persevere, beginning at the beginning, with the help of my TiVo.

Arlen Specter starts off the questioning, asking about stare decisis in general and Roe v. Wade in particular. Roberts sticks to the general and avoids the particular. Specter pushes his term "super-stare decisis" for Roe and whips out a gigantic poster listing the 38 cases that "reaffirmed" Roe v. Wade and asks if Roberts would think "Roe might be a super-duper-precedent." Roberts emphasizes that it is Casey that really matters, because that is the case where the Court addressed Roe and stare decisis and genuinely reaffirmed it. The other cases, I add, didn't so much "re-affirm" as simply accept and apply.

As noted in an earlier post today, Roberts states that he recognizes the existence of a constitutional right of privacy, but he frames his answer in a way that should appeal to conservatives as he stresses the constitutional clauses that express privacy rights. As to the rights in the penumbra, he says nothing. Instead of pursuing Roberts about that, Specter tries to get him to say Roe is a locked-in precedent. Of course, he does not.

Asked about the "notion of a Living Constitution," Roberts makes the seemingly unRehnquistian statement: "I agree that the tradition of liberty is a living thing." I say "seemingly," because it is well known that Rehnquist (like Scalia and many conservatives) rejected the notion that the Constitution changes to keep up with the times, but Roberts didn't say that it did. He said that "tradition" is a living thing. Whether the ongoing, living tradition of liberty makes its way into the interpretation of constitutional clauses containing the word "liberty" is another question. If Specter were sharper, he would have done a follow-up question.

Patrick Leahy asks a series of questions about separation of powers. "Isn't this hornbook law?" he asks when Roberts can't answer a difficult question about whether Congress can vote to stop a war. Leahy seems peeved that the answer isn't an obvious consequence of the power to declare war. Roberts handles these questions well, even though Leahy frequently interrupts him.

Questioning Roberts about standing doctrine, Leahy misses the entire point by not recognizing that injuries to the environment are enough to give a person standing. He blurs them into the same category as no injury at all. Roberts sincerely sorts through basic doctrine — this really is "hornbook law" — and doesn't make it excessively obvious that Leahy doesn't understand what he's trying to talk about. Leahy mumbles his way into another interruption talking about — what? — tennis star? Oh, Kenneth Starr. Oh, lord, I wish Leahy's turn was up!

Orrin Hatch lays out the various methodologies of constitutional interpretation, taking categories from a Cass Sunstein book. Roberts doesn't like the labels and calls himself a "modest judge." He goes on to speak comfortably and fluently about how judges ought to behave, and it makes me think that Hatch lobbed him a nice nerf ball. The Hatch questioning makes a lovely resting point for Roberts — and yet he's saying a lot of basic things that are useful for people to hear. "It is emphatically the province and duty of the judicial department to say what the law is" — I try to say that at least once a week myself.

Roberts expresses confidence in the ability of judges to draw difficult lines. There is a difference between "making the law" and "finding the law," and judges know when they've crossed the line dividing the legislative from the judicial, he says. He thinks some judges go too far deferring to the legislature on the theory that they can't draw that line and can't say what the limit on Congress's power is, but deference to the legislature is also important, he elegantly adds.

Ted Kennedy invokes Katrina to bring up his themes of poverty and inequality. He outlines the history of civil rights cases and laws and asks Roberts to state that the progress that has been made is "irreversible." Kennedy becomes extremely antagonistic to Roberts over various issues — you can refer to the transcript for the details — interrupting Roberts repeatedly and looking quite angry. Several times, Arlen Specter has to tell Kennedy to let Roberts finish. At one point, when Roberts is just beginning an answer, Kennedy seems to snap "Roberts" at him, with no "Judge" or "Mr." in front of the name, and we rewind several times to try to figure out if Kennedy was indeed that rude. I still don't know, due to Kennedy's irritating garbling. Kennedy might have some good points to get out, but his anger and rudeness thoroughly undercut his presentation.

Chuck Grassley reads some legal material in a too-loud voice and asks Roberts to opine on it. The exchange with Grassley is very similar to the one with Hatch. Courts decide cases according to the law, you know. I'm trying to resist hitting the fast-forward button.

I succumb to temptation and fast-forward a bit. I stop at a point where I see Roberts' wife yawning. First laugh of the day, I think.

Joe Biden begins by saying "Hey, Judge. How are ya?" Then, "Look, Judge, uh, I'm gonna try to cut through some stuff if I can." What are the chances that Roberts is fooled into thinking he's facing an amiable, jovial pal? Biden goes on at length playing with yesterday's baseball metaphor and really getting on my nerves. When will he get to a question? Finally, he gets to the question whether Roberts thinks there is a right of privacy in the Fourteenth Amendment. Good! Roberts: "I do, Senator." But he can't extract much detail after that, as the two men get bogged down in how much Justice Ginsburg revealed when she endured her Senate hearings.

C-Span breaks away for its ritual of the opening of the House of Representatives, and Biden is ousted by those inconsequential 5 minute speeches. What an indignity! So, I must fast-forward.

It's time for Herb Kohl. Kohl gets Roberts to say that he believes in the right of privacy articulated in Griswold, as later framed in terms of substantive due process. That is to say, he doesn't endorse the notion of rights in the penumbra of the Constitutional clauses, as stated in the case. Roberts puts the right into the due process clause, as later cases did. But how big is this privacy right? Roberts will only say that it covers at least what Griswold spoke about — married persons' right to use contraceptives. The reason he would talk about that but not abortion is that he's sure that there would never be another case on that subject. That's a neatly framed position! It stops those who would try to destroy him for not believing in the right, but it commits him to nothing that he might actually decide.

Kohl is a mellow questioner.
Mike DeWine raises some interesting issues about FISA courts and then free speech. He doesn't so much seem to be testing John Roberts as publicizing legal issues of note. Now he's getting to a case I'm especially interested in, Garrett, which one of the Senators yesterday misrepresented as finding the Americans With Disabilities Act unconstitutional. (The Court merely found part of act not to be supported by the Fourteenth Amendment power, which meant that Congress could not abrogate state sovereign immunity. To put it simply, that limits plaintiffs to prospective relief when the defendant is one of the states.) DeWine's question is about judicial deference to congressional factfinding. The problem in Garrett was that Congress needed to find not just that persons with disabilities had suffered discrimination, but that their Fourteenth Amendment rights had been violated. There is a big discrepancy between these two things, however, because this kind of discrimination only needs to pass a minimal scrutiny test not to violate the Equal Protection Clause. So it's not really "factfinding" that was at stake in Garrett, but legal analysis about what rights are, which is the approprate role of the courts. But what Roberts talks about is how later cases — Hibbs and Lane — have been more deferential to Congress and how the the law in this area is still evolving. Basically, he is distancing himself from Garrett, which many people find distinctly unsympathetic. Roberts does not make any effort to explain the actual legal issue in Garrett. I'm sure that was a smart move, actually, rather than to try to explain the legal point I just did. No one would appreciate it.

Dianne Feinstein asks about several quotes that seem to reflect insufficient concern about women's rights. When he explains that the crack about encouraging homemakers to become lawyers was a joke, she chides him about his tone. Why isn't he modest and humble all the time? God forbid anyone should ever have a light moment and try to get on the Court. She moves on to ask about the Commerce Clause. He calls attention to the recent Raich case, emphasizing how broad the power the Court has recognized is and how minor Lopez and Morrison were. Feinstein brings up the separation of church and state and makes the blatantly untrue assertion that there is more divisiveness among religious groups now than ever before in our history. She tries to get him to state a belief in "the absolute separation of church and state." Of course, he doesn't. He says he doesn't know what the concept means, indicating that he sees Establishment Clause questions as complex, making me think he'll continue the trend of cutting the cases down the middle and offering up no clear answers.

Hey, it's grueling listening through all of this. It must be hard on John Roberts. It's just weird to have to sit there and be grilled all day long. Ah, but he'll have to work long and hard on the Court. Why not test his stamina?

Jeff Sessions. I'm skipping this one. Sorry.

Russ Feingold. First question: Why not televise the Court's arguments? Please say yes! Roberts talks way too much here, for some reason. Maybe he's trying to run out Feingold's time. Second question: How did September 11th affect your thinking about the law? Again, he gets weirdly chatty, telling the story of how he heard about the attacks unusually late, which was interesting but utterly irrelevant. Again, I'm thinking he's trying to eat up Feingold's time. Really strange! He hasn't done this to any of the other questioners. Feingold pushes him to focus on the question of undervaluing rights during wartime. This part is productive. Roberts is fairly noncommittal, but shows a somber concern about rights, as, of course, he must. He flatly rejects Korematsu.

Lindsey Graham wants to talk to Roberts "about life." He circles around a bit and hits on the question: what was Rehnquist's legacy? Roberts' answer is too generic for Graham, so Graham blurts out what he cares about: you're going to be like Rehnquist, aren't you? He follows up by asking what Bush meant by introducing him as a "strict constructionist" and then what is meant by the Reagan Revolution. Graham makes no secret of his goal of establishing that Roberts is conservative. Then he blasts all the Democrats in the room for thinking Bush would or should do anything other than nominate a conservative. Moving to particular substantive questions, he throws out the best-phrased question of the day: "I think it stinks that somebody can burn the flag, and that's called speech. Whaddya think about that?" Another Grahamism (about the ACLU): "In the conservative world, how does that rank on the food chain?" I'm amused again, but what is Roberts supposed to say about that? Graham rants about Justice Ginsburg, who, among other things, wants to do away with Mother's Day and Father's Day. I think I hear a gasp from the audience. You know, Graham is amusing me — more than anyone else today — but I think his tone is a bit clownish for the occasion. Still, he works his way to the bottom line deftly. The Republicans voted for Ginsburg, though she was clearly liberal: "They deferred to President Clinton because he won the election."

Sitting behind Roberts are three women (one of whom is his wife) dressed in neat, pastel colored suits. All have tasteful jewelry, sleekly nyloned legs, and the absolute obligation to sit still on stiff chairs. I'm starting to feel really sorry for them!

Uh-oh. It's Schumer. He says, "So you will be Chief Justice." Okaaaay. If Schumer's saying that, then can we all just please go home? Schumer admits to being "pleasantly surprised" by some of his answers. He sounds bored by his own disquisition. The Constitution is supported by "three legs"? I expected Schumer to be more of an attack dog. But he knows this is pointless. The cameras pick up Leahy and Specter, who seem to be finding this all very tedious. Or am I projecting? It's 10:43 here now and I've been trying to get through this since 2:30. Schumer introduces the topic of Wickard v. Filburn, then goes "ummm," in a tone that — to me — says, oh f**k, who's going to care about Wickard v. Filburn?

John Cornyn. Sorry, I'm skipping this one too. I expect him to support Roberts, so nothing much can happen here.

Dick Durbin is blabbing about Justice Blackmun, who, according to the Dictionary of Received Ideas, stands for the infusion of human emotion into judicial decisionmaking. One must quote the phrase "Poor Joshua!"

My C-Span recording shifts over to covering some vote on the House floor, where it stays until the end. So I've won a reprieve! There's nothing left for me to TiVo-blog. So there will be no Sam Brownback for me. (I don't care. He was boring.) And no Tom Coburn. No Cryin' Tom. Damn! Not really. I've had enough. I can't believe these characters are going to dribble on for another day.

I wonder what John Roberts will do tonight. I suppose he has to spend the whole evening going over the details of today's performance with his various advisors. But I'd like to think he didn't. I'd like to think he went home and had a nice dinner and a glass of wine with his wife, spent the evening playing Uno with his kids, went to bed early, and is now sleeping soundly. Dreaming — of what? Gloriously striped robes.

Television ratings for the Democratic Convention.

So, we all know the ratings for the Convention are down from previous years. A key reason is that all the excitement has been drained out of them, as they've become carefully planned to work as slick commercials for the candidate.

New entry for a modern "Dictionary of Received Ideas":

Presidential nominating conventions: Be sure to use the phrase "tightly scripted."

Though the numbers are low, a few million are watching. But who are these people? Are they the ones for whom the smooth, Bush-bashing-free, hope-'n'-optimism fest was designed? Or are they just people who would actually enjoy some hardcore Bush-bashing but are tuning in to observe whether it seems is the sort of thing that will influence less hardcore people? Consider the cable news numbers:

During the ... 10 p.m. ET hour, CNN averaged 2.54 million viewers, Fox News Channel had 1.44 million viewers and MSNBC had 1.10 million, Nielsen said. ...

CNN won the ratings competition even though Fox routinely has a bigger audience during a normal prime-time.

Politics may play a part: Democrats are more likely to watch CNN and Republicans to watch Fox, according to a study released this spring by the Pew Research Center for the People and the Press.

So there's the evidence that the Convention is mostly playing to existing Kerry supporters. That doesn't suggest that they may as well have had their Bush-bashing fun. If they had, the worst quotes would have echoed in news and commentary and hurt Kerry with the undecideds. And, by the same token, those who don't watch will get a general sense that a well-run, well-behaved, reasonable convention is taking place and that that might allay some worries and inspire some confidence.

But that's not to say the whole extravaganza was a worthwhile use of anyone's time and money.